PFF: “We All Lose” in the Aftermath of the Viacom v. Google Ruling

The summary judgment in Viacom’s suit against Google is arguably the news of the week. And according to Thomas Sydnor, a Senior Fellow at the Progress & Freedom Foundation and the director of its Center for the Study of Digital Property, it’s news that negatively affects us all.

While Google’s General Counsel Kent Walker called the judgment “an important victory” which “follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online,” Sydnor took a very different view.

In a press release issued by the aforementioned Progress & Freedom Foundation, Sydnor claims that YouTube used “mass piracy as start-up capital for their product” to “drive law-abiding competitors out of the market.”

Compelling rhetoric, sure, but Sydnor also gets into the legal specifics of why he disagrees with the court’s ruling in favor of Google:

For example, Section 512(c)(A)(ii) denies safe-harbor protections to any hosting-site operator that “is aware of facts and circumstances from which infringing activity is apparent.” But Judge Stanton persuaded himself that a hosting-site operator can actually know that “infringement is ‘ubiquitous’” on its site, yet be wholly unaware of any “facts and circumstances from which infringing activity is apparent.” Appellate courts should find such self-contradiction most unpersuasive.

This case has been so massive, so endless, and so unflattering to both sides that there are many ways you can frame this judgment. But the fact that the judge determined that YouTube is both aware of the “ubiquitous” infringements on its site and somehow exempt from any responsibility for that is bizarre.

We are all about fair use here; we don’t think UMG should have sued Stephanie Lenz. But there are literally hundreds of thousands of videos that ought to be providing income to rights holders, either in the form of royalties or licensing. Google apparently has no interest in helping the rights holders that are central to their success, either by changing their terms of service or by improving their identification software, and for that reason alone, we are inclined to agree with Sydnor in saying that everybody loses.